Constitutions Going Online

The internet is not merely a social phenomenon, it is more than that, it is of constitutional importance. Internet-related issues have already discussed from a legal perspective, but no one has recently and comprehensively focused on the interrelationship between internet-related developments and the development of constitutions, i.e. the political and legal frameworks of states and societies within states.

The draft paper

Regarding that topic a draft paper was prepared for the Symposium by Katharina Berner. It is titled “Constitutions Going Online – Internet-related Dynamics in Constitutional Law?”

Please find the latest version of the Constitutions-Going-Online-Paper here.

The workshop

The workshop discussed the internet as being not only a social phenomenon but also of constitutional importance. In doing so, the workshop shed light on the interrelationship between internet-related developments and the development of constitutions, i.e. the political and legal frameworks of states and societies within states. After a brief welcome by Professor Ingolf Pernice, the workshop was opened by Professor Matthias Bäcker who gave an overview over Germany’s constitutional setting and the functioning of the German Federal Constitutional Court. By way of example, Berner then explained how German constitutional case-law as a major instrument for keeping pace with changing social and technical conditions has responded to internet-related challenges to the German Constitution. Simultaneously, she illustrated how the Court’s jurisprudence has provided a framework within which the internet may operate and further develop. Berner emphasised that the German Constitutional Court has managed to cope with the development of the internet mainly by way of dynamic and extensive interpretation, on the one hand, and by resorting to traditional constitutional concepts and principles. Finally, she suggested that assessing the German Constitutional Court’s case law could not be an end in itself but also provide the basis for further research on internet-related dynamics in constitutional law of various states.

Discussion & remarks

Respondent Professor Franz Mayer then focussed on constitutional textualism and hypertexts, which are linked to the emergence of the internet; in his view, the development of the latter might significantly influence the constitutional setting of “textualist” countries. During discussion, several participants objected that the emergence of hypertexts might only lead to changes in quantity, not in quality. Another point which was raised during discussion related to the so-called dialogue of courts; it was asked whether and to which extent the internet may accelerate and facilitate this dialogue and to which extent constitutional questions prompted by the internet may be solved in a dialogue of various courts.